The following piece, written by the late Pieter Lawrence, is the sixth chapter of his 2006 work, 'Practical Socialism - Its Principles and Methods'.
Chapter 6
Socialism and Law
We may anticipate that the function of law would be different in a socialist society. This change would reflect the change in social relationships. Throughout history a main function of law has been to uphold and regulate property relationships. In protecting and enforcing property rights it follows that in all eras of propertied society the various systems of law have favoured the dominant economic class. In socialism this historic function of law will end. In a society based on common ownership and voluntary cooperation the sole object of law would be to serve the needs of individuals and interests of the whole community. Such law would provide a framework of freedom, enabling individuals to live out their chosen lives. Law in socialism would express the values of equality and democracy.
Even in the age of Pericles, Athenian democracy was practised exclusively by male citizens on a foundation of slavery that was sanctified by law. Similarly throughout Europe, under feudal law, the serf and his family were bound for life to the Lord of the Manor. Runaway serfs were flogged, branded or worse. In Capitalism, wage slaves are free to change their employers but still remain locked into a life of making company profits. This is the modern form of economic bondage, the routine of dept and wage working to get the money to pay the mortgage, the rates, gas, electricity and the many other bills, all regulated by law.
The relationship of worker to employer is based on great differences in property ownership which again are upheld and enforced by law. This is not just in the corporate ownership of the means of life, that is, natural resources, mining, industry, manufacture and transport, it is also in the ownership of land. For example, if we look up the web site on “Who Owns Britain” we find that in “England and Wales” almost 26 million acres of land is owned by just over 150,000 families or individuals. This is 0.28% (a quarter of one per cent) of the population, who own 64% of the land. If we take land owned by the Dukes of Buccleuch, Westminster and Northumberland we have just three individuals who jointly own 531,500 acres valued at just over £14 ½ bn.
At the bottom end of the scale, according to the Economist (23/02/03) for the years 1999/2000, the number of children in Britain living in poverty 4.1 million. (As stated above, poverty is defined here as children living in families receiving less than 60% of the average wage. What this means is sub-standard housing, poor conditions of life, poor diets and cultural deprivation). A study published by the Rowntree Foundation has said that 8.3 million of our population live in these circumstances and this is not improving with time. This 8.3 million living in poverty was 100,000 more than in 1996/97. If we needed reminding, these figures tell us that we continue to live in a deeply divided class society, which is regulated and kept in place by law.
In viewing these vastly unequal property relationships and the part played by law in their development throughout history, some schools of political thought assert that a society based on equality and cooperation would abolish all law. In particular this is an argument of put forward by anarchists. It is also true that such 19th Century socialist visionaries as William Morris and even Engels took this view. However, the idea that all law would be abolished should now be relegated to the irrelevant spheres of anarchist utopianism (as outlined in chapter 3 above). The reason for this is that the abolition of all law is problematical to the point of being not just wholly impractical, but would be in direct opposition to the principles of socialist organisation. For example, the abolition of law against paedophilia or rape would ignore the safety and well being of children and others; this would be unacceptable in any circumstances. To come to a very different example, it would be impossible to run a modern democratic society without constitutional law.
This brings us to the question that the subject of socialism and law is part of the wider question of social democracy. A basic working tool of democratic practice is the making of majority decisions. However, the very mention of a majority assumes a minority of people who did not agree and probably voted against. Democracy means that minorities also have their rights, not just the right to vote against but the freedom to persuade and bring a majority over to its view. In a society based on voluntary cooperation any who disagreed with a decision would be free to abstain from any action that might flow from a decision.
However, it is well to remember that minorities are not a particular human type who are always in the minority. On other issues they may well be part of the majority and in these circumstances they would not take kindly to dissenters taking action to prevent the wishes of the majority from being carried out. So, it would be a condition of democratic practice that no individual or group may take action against a majority decision, except within the bounds of democratic conduct. In socialism, this basic principle of democratic organisation would be applied in practical ways within a framework of democratic law.
Beyond the article of faith, that in a socialist society, absolute social accord will be absolutely guaranteed, without law and solely as a result of self-regulation, what we would have in practice is the absolute right of the individual to do what he or she wants. This would not only be the opposite of democracy, it would be the negation of freedom itself. This is not to dismiss self regulation. Even now, and certainly in socialism, it will remain a most important way of achieving decent human relations. But we should not take this up as a dogma, saying that self-regulation will be the only way to achieve a safe, stable and democratic society.
It can of course be argued that such cases as crimes against the person, which may be more difficult to relate directly to property relationships, are in fact, at the end of a sequence of causes and affects which begin with the psychologically destructive pressures of life under the capitalist system. There can be little doubt that the emotions of stress, anxiety, insecurity and frustration, which are inherent in the system and which blight the lives of many people, can distort patterns of reasonable social conduct.
However, in proposing to take society forward on a socialist basis we cannot assume an immediate perfect world; we begin with the real world as we find it. To quote just one case from a long list of crimes that have destroyed the lives of many families, it took eight years to catch the serial child killer, Robert Black. Thirty-eight police officers and 24 typists worked on 50 computer terminals linked to the Home Office Large Major Enquiry System. 60,000 statements were taken and 185,000 people were interviewed. Robert Black was a lorry driver and was convicted in 1994 of three child murders. It is likely that he raped and strangled more.
Abhorrence is a natural response to such crimes but it is regrettable that it is often accompanied by superficial judgements of the kind that blame the crime solely on the evil nature of the perpetrator. In such cases it is often possible to find a background story that suggests a wider, social responsibility. In reporting the trial of Robert Black the “Independent” (20/05/94) also gave some details of his life.
“Although Robert Black enters the record books as the worst child killer Britain has seen, little is known about his motives or mental make up. What is clear is that he had a disturbed, loveless upbringing, seemed unable to make proper friends and appeared unattractive to those who knew him. Black was born in Falkirk Royal Infirmary in April 1947, the illegitimate child of a Grangemouth woman. After being abandoned he was placed with foster parents in the small highlands town of Kinlochleven. His foster mother died when he was 13 and Black went to a hostel for the homeless in Musselburgh near Edinburgh, where he is said to have been sexually abused. He was neglected. Had virtually no friends and often inspired intense dislike.” “At work he was “Smelly Bob”; at home he kept a vast library of paedophile material.”
It is true that pre-occupation with personal struggles reduces our time and thought for the problems of others, even so, it should be asked, where was care of the community when this lonely and abused child needed the love and affection of a secure upbringing? Given that, when young, we learn from example, what moral lessons was he able to take from a childhood of rejection, violence and sexual abuse? We should expect that it taught Robert Black little more than deep feelings of bitterness, resentment and a psychopathic inability to appreciate the feelings of others; attitudes well expressed in Shakespeare where MacBeth interviews two murderers on their credentials for the evil task he had in mind. One reassures him, “I am one, my liege, whom the vile blows and buffets of the world have so incensed that I am reckless what I do to spite the world.”
Our knowledge of the causes of crime points overwhelmingly to adverse social conditions. For example, according to results of research by the Home Office published in “The Independent” in 1990, “The study, which will add to the Government’s embarrassment over the economy and the crime rate concludes that ‘economic factors have a major influence on trends in both property and personal crime. During recessions or periods of economic stagnation, the number of thefts and burglaries tends to grow’” The paper also reported (9/4/94) “The Association of Chief Officers of Probation released an internal survey of 30 probation areas showing that almost 70% of a sample of 28,000 offenders … were unemployed.” “Bill Watson, general secretary of the association, said it was ‘absolutely unmistakable’ that unemployment featured in offending patterns.” On the previous day it reported, “… A recent review of 397 research studies on young offenders, both in Britain and abroad, showed that the single most effective intervention (in the crime rate) was the provision of employment to offenders.”
The well proven link between crime and economics adds great force to the argument that the conditions of life in socialist communities would greatly reduce crime. The welfare of all citizens would be the first objective of social organisation and this would be achieved through cooperation, and would provide a secure standard of living for every person. Its relationships would reduce psychological damage and would be more conducive to a healthier pattern of personal conduct. In place of economic individualism, exploitation, competition and social exclusion, all of which contribute to the conditions in which crime thrives, there would be social integration and equal standing amongst all members of the community. Seen in this light we may assume that not only would crime be greatly reduced but with it, the machinery and administration of law.
This is not to wander too far on to the ground of economic determinism. People will always have choices but under the pressure of psychological compulsion the proper choices ones are not always easy to make. Also, there seems to be no direct evidence for saying that capitalist productive relationships cause people to commit the crimes of child abuse, rape, child murder or domestic violence. There is no evidence for asserting that all people in socialism will at all times be models of democratic virtue. On the contrary, the evidence from this life is that socialists can behave badly and even engage in child abuse. It is also apparent that some socialists are just as likely to behave in an undemocratic manner as anyone else. So, from crimes of the utmost seriousness, that threaten life and limb, to lesser kinds of anti-social behaviour, the unfair treatment of individuals, democratic accountability or the abuse of positions of civic responsibility, all these matters could only be administered in an orderly, predictable and democratic manner in a socialist society through legal procedures endorsed by the whole community.
The method of practical socialism to be applied to this question is in principle the same as the method for selecting any useful feature of present society that would be continued in socialism. The criteria we apply to useful production, useful decision making bodies and useful means of administration, apply equally to law. In the case of law it is a question of identifying the existing features of law that could continue to play a useful part in civic organisation together with the useful institutions that administer such law. Socially useful law should be distinguished from law that is concerned solely to uphold, regulate and enforce the economic relationships of the capitalist system.
It follows from the retention of useful law that institutions for administering it would also need to be retained. The administration of law in socialism would continue to respect the right of any person accused of an offence to defend him/herself. This means being able to call witnesses, to question evidence and to put a defence before a body, independent of those bringing the charges. Such a person should also be entitled to a right of appeal. This means that subject to perhaps modification along more democratic lines, the present court system would also be retained.
It is impossible to run a capitalist system without an accompanying prison system. The problems of crime cannot be solved. In a few cases the administration of law does make some attempts to treat some offenders with sensitivity aimed at helping with personal problems. Mostly the imposition of law is authoritarian, brutal and concerned with punishment and deterrence. The numbers held in prisons continue to increase. Over the past twenty five years the prison population in the UK has doubled. In 1994 the number was 52,830. In 2003 the number was 76,146.
Similarly, in Germany, the prison population increased from 49,658 in 1994 to 62,594 in 2003. Russia imprisons around 900,000 of its people. The United States has the highest proportionate prison population of any reporting world nation For the most part, the U.S. rate is five to eight times that of the Western European nations with a staggering 2,166,260 of its people in prison in 2003.
In the UK many prisoners are locked up for 23 hours a day in overcrowded cells and are subject to violent assault by prison officers and other prisoners, male rape, suicide and persistent self harm.
From any civilised viewpoint, the confinement of large numbers of population in prison “hell holes” is itself a legalised crime carried out by the state.
The use of law in socialism will be a means of safeguarding individuals and the community against dangerous or other anti-social behaviour. It would be humanely administered with the sole object of solving problems without any kind of punishment. The vile prisons as we know them would be abolished. On the assumption that it would still be necessary to hold some persons in places of secure confinement these would allow occupants to lead dignified lives in pleasant conditions. But the use of law in socialism would not only be concerned to avoid dangerous or anti social behaviour, it would also be practised for the regulation of democratic administration and would provide procedures for accountability.
In making a distinction between socially useful law that would be continued and law that could have no function in a socialist society we begin with the fact that much of present law exists to uphold and enforce property rights, to regulate the wage labour/capital relationship, and to mediate between contesting parties over monetary or other property disputes. However, over the past two centuries, legal systems have expanded enormously, partly into socially useful areas which are not directly to do with the protection of property rights.
For example, laws regulating foetal experiments, abortion and the age of sexual consent, whatever we may think of them, arise from moral or ethical questions. This kind of law has changed over time within states and varies enormously between states in ways that have little bearing on economic relationships. Similarly, we have laws on drunk driving, professional qualifications, licences for drivers, air line pilots, ship’s captains; laws on assault, murder, rape, child abuse, public nuisance; laws on planning and constitutional law which defines the boundaries of decision making amongst public bodies. All these examples arise from the organisation of civil society and would continue to be necessary.
Company law and income tax law would be redundant together with civil law for processing disputes over contracts, money transactions and property. Criminal Law deals with theft, fraud and assault etc., and so before the courts there is a sad parade of burglars, muggers, bank and building society robbers, car thieves, credit card fraudsters and drug offenders. But courts also deal with many cases which are less directly connected with present economic relationships. The law on this side deals with drunk driving, speeding and other traffic offences such as unlicensed or dangerous driving. When eventually arrested the courts deal with the paedophile who moves from district to district, using different names, posing as that “nice man” who helps out at the youth centre. They deal with the rapist, the violent schizophrenic, the psychopath, domestic violence and occasionally, but with predictable regularity, as we have noted, they deal with the child killer.
Planning law would continue to regulate housing, the use of buildings and industrial/manufacturing development in accordance with social policy. As at present, neither individuals or nor any public body would be free to develop a site without following the procedures of planning consent.
Family law would be continued. Just as night follows day it is certain that couples will continue to fall in love and have families. Sadly, it is equally certain that some will fall out of love. Family courts would not need to decide matters such as money maintenance, but this still leaves plenty of scope for disputes in which courts would need to arbitrate. It is unlikely that any society, however conducive to reasonable behaviour will succeed in removing the emotions of jealousy and bitterness that are inherent in family fall outs. This would be where couples cannot agree on questions such as who should leave or stay in the family home, custody of children, hours to be spent with one or the other parent. There is always a point where a relationship is over, despite this, it is sometimes the case that one of the couple refuses to accept that it is “over” and becomes a persistent nuisance, with a risk of violence. Here again is a situation in which the community through the use of appropriate law would need to intervene to protect the victim.
Housing is also an important area where new arrangements would require the backing of new law. Without a housing market, and housing mobility made possible by buying, selling and rent, the alternatives in a socialist society could vary, but one possibility is that the housing stock would be commonly owned with security of tenure held by occupants in the form of a lease from the community. Such leaseholds would have the backing of housing law.
What would be possible is that to begin with occupants would be granted leaseholds to the houses or flats they occupy. When moving house leaseholds could be swapped, either directly between leaseholders or through a local housing authority. This would mean that all rents or mortgage payments would cease and freehold ownership would be replaced by legal rights of occupier use in the form of a permanent lease. Residents taking on new homes in an area or when moving to a different area could be granted leaseholds to empty premises by an appropriate local housing authority.
This is not to suggest that the afore mentioned Dukes of Buccleuch, Westminster and Northumberland would be granted continued legal rights of exclusive occupation of their present 531,500 acres and the houses thereon. As fine examples of architecture, fine art and crafts, their great houses would pass to the community with the National Trust a ready made institution for the management of such heritage homes. Any sentimental attachment by these dukes to their former properties would have to be satisfied with perhaps occupation of a suitable gate house or game keeper’s cottage!
However, this does not remove the unavoidable fact that to begin with there would be considerable inequality in the use of homes. Under such proposals, leaseholders of terraced houses in the inner suburbs of big cities would have to accept that other leaseholders a few miles away would enjoy the better facilities of perhaps four bed roomed homes in the leafy suburbs. The plain fact is that in socialism, any policy concerning the relationship of town and country would present many complex problems that would take a considerable time to sort out.
Constitutional Law
As now, Constitutional Law would regulate procedures for the election and running of public bodies such as Parish, District, County and Metropolitan councils as well as Parliament. This would define the freedoms and the boundaries of decision making and action both in and between these various spheres of public organisation. Constitutional Law would also provide rules for the running of public services such as hospitals and schools; the democratic structure and management of units responsible for the production and distribution of goods.
Violent Reaction
It is prudent to anticipate a possible violent reaction to the capture of political control by a majority of socialists and the enactment of common ownership of all resources and means of production. This would be action by a recalcitrant minority. The history of great social change does not bode well for a peaceful transition. From this record we should assume that at least some sections of society with a great interest in things staying as they are, would be unlikely to respond with calm acceptance, even in the face of a popular and democratically organised movement.
Nor would such a recalcitrant minority have any difficulty in finding a justification for any violent reaction. In the tradition of contriving moral authority for upholding sectional interests, and perhaps borrowing from some dubious 18th Century philosophy it could be argued that the private ownership of land, natural resources and means of production is a natural human right that is integral with a democratic society. It would follow from this that the dispossession of an owning minority would be an undemocratic action against the natural rights of a social minority by a tyrannical majority. In these circumstances, it could be argued that violent reaction would be justified.
There would of course, be not the slightest prospect of reversing a decision by a majority of people to commence the organisation of a socialist system. The barriers to the establishment of Socialism exist in the minds of most people who do not yet accept the ideas of socialism. With the growth of the socialist movement to the point where a majority exists the consequence will be the capture of political control and with it, the entire machinery of government. The conversion to common ownership will be legislated as a legal enactment and from this point on the entire framework of law will be adapted, enabling the formal enactment of common ownership to be applied as action throughout society.
To reverse the process, the majority of people would have to be reconverted to support for the capitalist system by means of propaganda. The ruling groups would already have lost the battle of ideas, their social influence will have gone, together with their monopoly of the means of life. To suggest that at some point individuals will be able to take over socially owned property and force members of the community to work for wages and the profits of companies is a complete abandonment of logical reasoning. To argue that the same result could be obtained by violent minority action is equally absurd. This is not to suggest that a recalcitrant violent minority could not fight a desperate rearguard action whilst blindly unaware of the futility of their actions. The irrationality of such actions is possible but this could not be described as a serious attempt to destroy socialism and restore the capitalist system. Socialism could not be forcibly overthrown.
Acts of violence, sabotage or any other form of anti-social activity could only be carried out by renegade groups acting outside the law. This would not be tolerated at any stage. If the hypothesis includes a residue of people "at war with society" who make mindless attacks endangering the well-being and lives of other people then the means to deal with them would exist and would be used as necessary. Such situations already exist under capitalism, but with this difference, that while capitalism has no solution because capitalist conditions create the problem, for socialist society the problem would be a passing phase of short duration.
On the assumption that we are speculating about acts of violence mainly during the post change over period, obviously, force would be used if argument and reason failed. With the capture of political control the machinery of government, including every section of the armed forces would come under the control of the new democratic administration. Implicit in this is the recognition that, in the period of changeover, control of the armed forces would be continued for as long as necessary in the light of conditions then existing. In view of the possibility of violent reaction by a minority it could not be guaranteed that that simultaneously with gaining control the armed forces would at once be wholly dismantled.
This does not mean that armed forces would have to be used. Control of armed forces by Parliament would prevent their use by any renegade group and would act as an effective deterrent without these forces necessarily having to be used. The conditions for the success of the change over from capitalism to socialism will have already been completed before the winning of a majority in Parliament through the ballot box.
The achievement of a socialist majority will mean that socialists will be in the majority throughout every section of production, distribution, services, administration and government departments. From this basis, cooperation to run society directly for needs would be commenced. It is inconceivable that the police or armed forces would remain outside these developments or would act against the tide of democratic events. It is against this background that the hypothesis of possible violent obstruction by an undemocratic minority has to be considered.
Not all of the hypothetical minority working to restore capitalism would be prepared to take violent action for that purpose. This will present no problem to socialism. It is likely that diverse political groups will be active in trying to influence social policy. In line with democratic practice, a group wishing to return to the capitalist system will be free to propagate their views and to organise democratically to win over the majority. They will of course, operate against the tremendous disadvantage of advocating a return to an outdated system of exploitation, economic chaos, waste, destruction and war.
Administration of Law in Socialism
The practical ways in which the structure of law and its administration could be adapted to serve the needs of communities in socialism is far beyond the competence and scope of this book. Indeed, the subject is so extensive it could not be attempted in any single book. As well as its complexity, law has also evolved with great local and regional variations and no doubt this would continue. A single unified system would be neither possible nor desirable.
However, we have been able to suggest the general methods that we should apply to the question. In principle, the reasons for the adaptation of law in socialism would be no different to the way in which law, throughout history, has had to adapt to new situations in line with developing society. As in all societies, law in socialism would have the job of upholding the general aims of the new society and of setting out the procedures through which it could achieve those aims.
We define a socialist system as one based on common ownership, voluntary cooperation, production solely for needs and democratic organisation. Having been enacted as legislation, the relations of common ownership would have the force of law and this would be the legal basis on which all means of production and all resources would pass into the common property of the whole community. From this point on, people doing socially useful jobs would carry on doing them as voluntary cooperation in production units under democratic management by workers themselves.
It is in these important fields of production and distribution where many of the existing functions of law would become redundant, for example company law and law regulating the wage labour/capital relationship. It is also here where new law would be required to coordinate working relationships between public decision making bodies and the actions of production units in implementing policy decisions. Together with new law a great deal of existing law would be continued. The test to be applied is whether or not any existing law can continue to serve the needs of individuals or the wider community.
The administration law would be humanised. The present hierarchical, authoritarian procedures which govern the structure of the legal system would need to be democratised. The present use of juries and lay magistrates, drawn from a wide social background, and acting under legal advice from qualified legal officers offers an acceptable basis which could be extended. However, such anachronistic procedures whereby judges are appointed by a Lord Chancellor, and in some cases by the Monarch on the recommendation of the Prime Minister, would hardly be compatible with the principles of democratic organisation. Perhaps, after nomination, persons making judgements could be elected by a ballot of all barristers and solicitors. Rotation of office would also be a healthy practice. For the same general reasons that apply at present, including the practice of democratic accountability, it would be important that the entire practice of law, though not beyond public criticism, should continue to remain independent of all other public bodies.
Finally, it should be emphasised that a fully democratic society, in which all citizens would be able to cooperate on equal terms around a common interest, would achieve a vast reduction in crime. This would be both a moral and material basis for decent human conduct. We also have every reason to trust that all public bodies would work conscientiously within their terms of reference according to the rules set by Constitutional Law. This being the case we may anticipate that overwhelmingly, in every sphere of life, conduct of people will be self regulating, without a need for society to intervene with the use of law.
Pieter Lawrence
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